Monday, March 26, 2012

Over at the Foundry (H/T: Transfigurations), Mike Brownfield has a good summary of the issues involved in the historic three-day session of oral arguments starting today in the United States Supreme Court over the constitutionality of Obamacare. (The arguments cannot be watched live, but CSPAN will report them after they finish each day -- see also the link below to a recording and transcript of each day's arguments). Here is his article, with a few annotations as needed:

Rare is the occasion when the nine justices of the U.S. Supreme Court gather to hear three days of arguments, and rarer still is when it is for a case like Obamacare — one that cuts to the core of the Constitution and whose outcome could fundamentally alter the role of the federal government and its power over the people. But today the Court will do just that when it open its doors and begins weighing the arguments on the constitutionality of President Barack Obama’s seminal health care law.

Were the American people to vote on the issue, they would fall decidedly against Obamacare, as recent polls have shown. But for the Court, the decision is not as cut and dried as an up or down vote, but one that involves the interplay of a series of issues raised by those who are challenging Obamacare — more than half the States of the Union and a collection of interested organizations and private parties — and those brought by the Obama Administration, which is defending the law. And they come to the Supreme Court after conflicting appellate court rulings which have left undecided the question of whether Obamacare is permissible under the Constitution.

The central issue before the Court is whether Congress has the power under the Commerce Clause and the Necessary and Proper Clause to impose the individual mandate on the American people, forcing them to buy health insurance or pay a penalty. If the Court holds that Congress was outside the bounds of its authority, it can strike down the individual mandate, leaving the justices to then decide whether all or part of Obamacare should fall along with it.

If the Court upholds the mandate, America will be in the same position it finds itself today — facing a law that vests untold power and resources in the hands of the federal government, that transfers health care decision making from individuals to unelected bureaucrats, and that increases costs while decreasing access. In short, America’s health care crisis will get worse, not better, and future generations will be left paying the tab. What’s more, if the Court allows the individual mandate to stand, it will unhook Congress from its Constitutional leash, empowering it to regulate commerce and individual behavior in new ways never before imaginable.

There are other issues, too, besides the individual mandate. Even before the Court reaches that subject, it must broach the issue of the Anti-Injunction Act, a 145-year-old federal tax law which could bar the Court from even hearing a challenge to the individual mandate. Under that law, one cannot sue over a tax until they have paid it. If the penalty for violating Obamacare’s individual mandate is considered a tax under that law, then the challenge could not be brought at this time since the penalty has not yet taken effect. Obamacare’s challengers and even the Obama Administration agree that the Anti-Injunction Act shouldn’t prevent the Court from hearing the case, but the issue will still be heard, and some think that the Court could rely on the Act as a way of avoiding having to answer the question of whether the mandate is constitutional.

If it decides that the Act bars it from considering the constitutionality of Obamacare, the Court will not be able to address that issue until 2015. [UPDATE 03/26: The Supreme Court has posted an audio recording and transcript of this morning's arguments at this link.]

Mr. Brownfield notes that after the Court finishes the Anti-Injunction Act and constitutionality issues, then the issue of severability presents itself -- whether and how much of the law should be struck down. These issues will be addressed for 90 minutes on Wednesday morning:

If the Court finds the Anti-Injunction Act doesn’t apply, it will move on to the individual mandate. Its decision on that issue brings with it a whole other set of problems — namely, if the Court finds that the mandate is unconstitutional, it must next decide the issue of severability — whether Obamacare will operate as Congress intended if it is stripped of the mandate, or whether all or parts of the law must be struck down with the mandate. If the Court finds that the mandate is severable, the Court can strike it down and leave it up to Congress to clean up what’s left, or, as the Obama administration has recommended, it can strike down the mandate and related provisions of the law that depend on it. Finally, if the justices find that the mandate is not severable, then it will throw out all of Obamacare, and it will again be up to Congress to enact real market-based health care reforms that bring down costs while increasing access to care.

On Wednesday afternoon, the attorneys will return to address one final issue:

There is another issue, too, tied to Obamacare, and that has to do with Congress’s decision to impose new requirements on states forcing them to expand the Medicaid program and abide by the federal government’s conditions, leaving them to shoulder much of the costs while operating Medicaid according to Washington’s whims. If the states don’t comply, they could lose all Medicaid funding, putting them in an untenable position in which both their autonomy and their sovereignty collapse under Obamacare’s weight. It is up to the Court to decide whether Congress overstepped its bounds.

And Mr. Brownfield concludes with what I consider a huge irony: we have come, as a nation, to the point where we trust nine justicies to decide our future, because our elected representatives are too tied to the special interests who keep them in office to be able to act in the country's best interest:

America waits for the Supreme Court to weigh the facts and the law, to consider the precedents and the policy, and to issue a decision that will have implications far into the future. Will Congress be limited by the Constitution, or will its authority expand beyond the limits that the Founders intended? Will Americans’ liberties stand? Will Obamacare fall? No matter the outcome of the Court’s ruling in June, Congress can and should act now to repeal Obamacare and rid the land of this intolerable act.

2 comments:

The concluding remarks of your post struck me with particular force. In particular the following [emphasis added]: "And Mr. Brownfield concludes with what I consider a huge irony: we have come, as a nation, to the point where we trust nine justicies to decide our future, because our elected representatives are too tied to the special interests who keep them in office to be able to act in the country's best interest."

The most striking thing is that it brought eerily to my mind something that I read within the past five months by Austrian School economist and political economist Hans-Hermann Hoppe:

Following the successes of self-governance of the colonies and subsequently of the American Revolution "(w)hat was the next step once independence from Britain had been won? This question leads to the third source of national pride—the American Constitution—and the explanation as to why this constitution, rather than being a legitimate source of pride, repesents a fatal error.

"Thanks to (von Mises and Rothbard) we are now able to give a precise answer to this question. (O)nce there is no longer free entry into the business of the production of protection and adjudication, the price of protection and justice will rise and their quality will fall. Rather than a protector and judge, a compulsory monopolist will become a protection racketeer: the destroyer and invader of the people and property that he is supposed to protect, a warmonger, and an imperialist. Indeed, the inflated price of protection and the perversion of the ancient law by the English king, both of which led the American colonists to revolt, were the inevitable result of compulsory monopoly. Having successfully seceded and thrown out the British occupiers, it would only have been necessary for the American colonists to let the existing homegrown institutions of self-defense and private (voluntary and cooperative) protection and adjudication by specialized agents and agencies take care of law and order....

"This did not happen, however. The Americans not only did not let the inherited royal institutions … wither away; they reconstituted them within the old political borders in the form of independent states, each equipped with its own coercive (unilateral) taxing and legislative powers. While this would have been bad enough, (they) made matters worse by adopting the Constitution and replacing a loose confederation of independent states with the central (federal) government of the U.S. ….

"In effect, what the American Constitution did was only this: Instead of a king who regarded colonial America as his private property and the colonists as his tenants, the Constitution put temporary and interchangeable caretakers in charge of the country's monopoly of justice and protection. These caretakers did not own the country, but as long as they were in office, they could make use of it and its residents to their own, and their protégés', advantage. However, as elementary economic theory predicts, this institutional setup will not eliminate the self-interest-driven tendency of a monopolist of law and order towards increased exploitation. To the contrary, it only tends to make his exploitation less calculating, more shortsighted and wasteful."[a]

Although I suspect that you will disagree with Hoppe's conclusions in some not inconsiderable degree, I think it aptly accounts for where we are today, and for where we appear to be headed in the uncomfortably near future.

A Guide to This Site

This page will provide you with a convenient listing of posts by category. In order to use the features of this site, you need to check all the past posts in a given category, since each new post assumes a certain familiarity with what has gone before.

Subscribe

A Gentle Warning to Readers

This Weblog has a different purpose from that of---oh, say Instapundit. The topics here do not lend themselves to short, pithy treatment. Also, there are many legal colleagues in the audience; I include material that may appeal more to one who has been trained in that profession. So, be forewarned; this may not be easy reading. No apologies---some days you might just have to work harder! Should you have any complaints, first observe these preliminaries, and then post your specifics on the RantBoard.

Comment Policy

Good dialogue is fostered when people sign their own posts. I reserve the right to moderate all comments, again in the interests of a good dialogue, and I thank those who are minded to contribute to that goal. If you are having trouble posting a comment because of the registration requirements, please email me (see "About" in my Profile) and I will try to help.

A Gallimaufry of Weblogs

Listed below are the Weblogs I commend to your attention. A listing is not an endorsement of content. For an explanation of the groupings (by analogy to Tennyson's "Charge of the Light Brigade"), please see this post, and this; the reference to "cannon" is not pejorative (although it may, depending on its character, be regarded as onomatopoetic). Authors who object to their listing here, either on specific grounds or no grounds at all, may contact me for correction or removal. (Removal is automatic after a month or so of inactivity.) I will also consider requests and recommendations to be added.Note: only the best of the conservative political blogs are listed here (under "Cannon Fodder", below). For political blogs on the left, those readers who lean toward such fare need no assistance in locating them, and they need no promotion here.